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corruption+offences.pdf

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NSW Parliamentary Research Service September 2013 e-brief 11/2013 1. Introduction 2. ICAC investigations 3. Common law offences 4. Statutory offences 5. Recent ICAC inquiry 6. Previous reform proposals 7. Other Australian States 8. United Kingdom 9. Conclusion Page 1 of 12 Corruption offences by Lenny Roth 1. Introduction In recent years a number of high profile inquiries by the Independent Commission Against Corruption (ICAC) have resulted in
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  NSW Parliamentary Research Service September 2013 e-brief 11/2013   1. Introduction   2. ICAC investigations   3. Common law offences   4. Statutory offences   5. Recent ICAC inquiry   6. Previous reform proposals   7. Other Australian States   8. United Kingdom   9. Conclusion   Page 1 of 12 Corruption offences by Lenny Roth 1. Introduction In recent years a number of high profile inquiries by the Independent Commission Against Corruption (ICAC) have resulted in findings that persons in public office  –  including Members of Parliament, council officers, and public servants  –  have engaged in corrupt conduct, and that consideration should be given to the prosecution of those persons for criminal offences. This e-brief begins with an outline of ICAC’s role in investigating corruption. It then examines the main criminal offences in NSW that target corruption. Next, it refers to the recent ICAC findings in relation to the former Minister, Ian Macdonald. This paper also discusses past proposals to reform corruption offences in NSW and Australia. The final sections review corruption offences in other Australian States and note recent law reforms in the United Kingdom. 2. ICAC investigations ICAC was established by the Independent Commission Against Corruption Act 1988 (NSW). Under the Act, one of ICAC’s  main functions is to investigate any allegation or complaint, or any circumstances which imply that corrupt conduct may have occurred: s 13(1). Corrupt conduct is defined broadly; it relates to the honest and impartial exercise of official functions by a public official; and to the conduct of any person that adversely affects, or could adversely affect, the honest and impartial exercise of official functions by a public official: ss 8 and 9. ICAC is to conduct its investigations with a view to determining whether any corrupt conduct has occurred; and whether any laws, or practices and procedures, need to be changed: s 13(2). Evidence:   ICAC is not bound by the rules of evidence that apply in court proceedings and it can inform itself in such manner as it considers appropriate: s 17. In addition, witnesses cannot refuse to answer questions during a compulsory examination or public inquiry, and also cannot refuse to produce documents that they are asked to produce: s37. However, if a witness objects to answering questions or producing a document, his or her evidence is not admissible against him or her in any civil or criminal proceedings, unless those proceedings are for an offence under the ICAC Act (e.g. giving false or misleading    NSW Parliamentary Research Service Page 2 of 12 evidence during an inquiry): s 37. The Commissioner may declare that all answers given or documents produced by a will be regarded as having been given or produced on objection: s 38. Findings and opinions:  After an investigation, ICAC can make findings as to whether a person has engaged in corrupt conduct; and it can also form opinions as to whether advice of the Director of Public Prosecutions (DPP) should be sought in relation to the commencement of criminal proceedings against particular persons, or whether consideration should be given to taking other action against particular persons: s 13(3) and 13(5). It can also make recommendations for the taking of any other action: s 13(3). ICAC is required to prepare a report in relation to matters which have involved a public inquiry: s 74. These reports are to be furnished to each House of Parliament. Section 74A(2) states that a report must include: …in respect of each “affected” person  [a person against whom substantial allegations have been made in the course of the investigation], a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following: (a) obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the person for a specified criminal offence, (b) the taking of action against the person for a specified disciplinary offence, (c) the taking of action against the person as a public official on specified grounds, with a view to dismissing, dispensing with the services of or otherwise terminating the services of the public official. ICAC is not authorised to include in a report a finding that a person has committed an offence; and nor is it authorised to make a recommendation that a person should be prosecuted for an offence: s 74B. In determining whether a person has engaged in corrupt conduct, ICAC makes findings of fact based on the civil standard of proof (on the balance of probabilities) rather than the criminal standard of proof (beyond reasonable doubt). However, in applying the civil standard, ICAC takes into account the principle that the court should not lightly make a finding that a person has engaged in criminal or serious misconduct. 1   ICAC’s  approach in deciding whether consideration should be given to obtaining the advice of the DPP with respect to the prosecution of a person for a criminal offence has been stated as follows: In each case, the Commission first considers whether there is any evidence of a criminal offence…If there is evidence capable of constituting a criminal offence, the Commission assesses whether there is or is likely to be sufficient admissible evidence to warrant commencement of a prosecution for that offence. In undertaking this assessment, the Commission takes into account declarations made pursuant to s 38 of the ICAC Act. 2   The broad range of criminal offences that might be considered in relation to a finding of corrupt conduct is indicated by the list of 25 offences in section 8(2) of the ICAC Act. These include official misconduct, bribery, fraud, election funding offences, perverting the course of justice, tax evasion, bankruptcy, illegal drug dealings, and homicide or violence.    Corruption offences Page 3 of 12 Prosecutions: The DPP assesses cases under its prosecution guidelines.  3  The overriding question is whether it is in the public interest to proceed with a prosecution. As part of this assessment, the DPP considers whether the admissible evidence is capable of establishing each element of an offence; and whether there is a reasonable prospect of conviction by a jury. Several recent articles have discussed evidentiary issues and delays associated with prosecutions in cases referred by ICAC to the DPP. 4   3. Common law offences The main common law offences directed at corruption are extortion, bribery and misconduct in public office. Unlike statutory offences, common law offences do not have maximum penalties (the penalties are “at large”) . However, when sentencing for common law offences, the court has regard to any corresponding statutory offence as a reference point. 5   Extortion: The common law offence of extortion dates back to around the 13 th  century in England. 6  The offence was stated as, “the taking by any officer, under colour of his or her office, of any money or valuable thing when that is not due at all, or is more than is due or is not yet due”.   It arose in the context of a system where “public services commonly were p rovided on a fee for service basis, the fees paid often enough providing the lawful income of the official who rendered this service”. The introduction in the 19 th  century of a system of official remuneration based on salary rather than fee, and expansion of the common law offence of bribery to all public officials, led to the demise of the extortion offence. It was abolished in England in 1968. It remains an offence in NSW but has fallen into disuse.   Bribery: By the early 17 th  century, the courts recognised an offence of bribery, which was only applicable to judicial officers. 7  In the 18 th  century, the offence was extended to public officials in general. This was recognised by the NSW Supreme Court in a decision in 1875 (the case involved a bribe being paid to a Member of Parliament, and the Member was considered to be a “public official”) . 8   In a 1992 decision, the NSW Court of Appeal approved the following statement of the common law offence of bribery, which appeared in the 1964 edition of Russell on Crime:   …. the receiving or offering of an undue reward by or to any person in a public office, in order to influence that person's behaviour in that office, and to incline that person to act contrary to accepted rules of honesty and integrity… 9  The Court of Appeal explained that: The evil to which the common law is directed is that of public officers being bought to act other than honestly and impartially in the performance of functions within the ambit of their office. Essentially the evil is a corrupt arrangement between the person holding office and the recipient of his favour. 10   The Judicial Information Research System (JIRS) sentencing statistics do not refer to any cases between 2006 and 2012 in which a person was sentenced for common law bribery as the principal offence. 11  Prosecutions for the corrupt commission offences in the Crimes Act 1900 appear to be more common (discussed further below).    NSW Parliamentary Research Service Page 4 of 12 Misconduct in public office:    In 1978, Finn outlined the history of the common law offence of misconduct in office as follows: By at least the middle of the eighteenth century the common law had evolved a general, though ill- defined offence variously described as “official misconduct”, “breach of official trust”, or “misbehaviour in public office”. To this day the precise metes and bounds of this offence remain uncertain. Indeed, there has been - and still is - a tendency to regard “official misconduct” as a series of specific but interrelated offences such as oppression, neglect of duty, abuse of official power, fraud in office, etc. As a general offence it is, none the less, still recognised and applied as part of the common law of England…[I]n common law jurisdictions in Australia its existence has been acknowledged  –  though it has rarely been invoked. 12  It is clear from recent decisions in Victoria and NSW, that the offence remains part of the common law in Australia. The Victorian Court of Appeal outlined the elements of this offence as follows: (1) a public official; (2) in the course of or connected to his public office; (3) wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects. 13   The JIRS sentencing statistics identify 4 sentencing cases between January 2006 and December 2012 where this was the principal offence. In one case, a fine was imposed on the offender. In the other three cases, the offender was sentenced to a term of imprisonment, ranging from 2.5 years to 4.5 years. There was one further case where the principal offence was accessory before the fact to the offence of misconduct in public office, and this resulted in a sentence of imprisonment for 18 months. 14   Case example: In 2008, ICAC made a corrupt conduct finding against a RailCorp employee, and he was subsequently charged with several offences including misconduct in public office. The circumstances were that the employee had set up a business in partnership with another person for the purpose of tendering for maintenance work with RailCorp; and he had concealed from RailCorp his involvement in the business. The business was awarded the tender and performed work for RailCorp between 2003 and 2007. As a result, the employee made a profit of $1.3 million. The employee pleaded guilty to the offence of misconduct in public office and, in respect of this offence, the Court sentenced him to imprisonment for four years including a non-parole period of three years. He appealed against this sentence but the appeal was dismissed. See  Blackstock v The Queen  [2013] NSWCCA 172.
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